• Linkedin
  • Twitter
  • Rss

Oil, Gas & Energy Law

Skip navigation

Oil, Gas & Energy Law

Global Energy Law & Regulation Portal

Join OGELFORUM

Oil, Gas & Energy Law

Global Energy Law & Regulation Portal

  • Sign in
  • Subscribe
  • Home
  • Sign in
  • About About
    1. Home
    2. About
    3. About OGEL
    4. About OGEL
    5. Founding Editor T.W. Wälde
    6. T.W. Wälde
    7. Editorial team
    8. Editorial team
    9. Contributing Authors
    10. Contributing Authors
    11. Subscriptions
    12. Subscriptions
  • Journal Journal
    1. Home
    2. Journal
    3. Browse Issues
    4. Browse
    5. Articles by Category
    6. By Category
    7. Articles by Author
    8. By Author
    9. Advance publication
    10. Advance publication
    11. Specials
    12. Specials
    13. Search
    14. Search
    15. Book reviews
    16. Reviews
  • Legal & Regulatory docs. L & R docs
    1. Home
    2. Legal & Regulatory docs.
    3. L&R by Country
    4. L&R by Country
    5. L&R by Category
    6. L&R by Category
    7. L&R recent additions
    8. L&R recent additions
    9. Search
    10. Search
  • OGELFORUM OGELFORUM
    1. Home
    2. OGELFORUM
    3. About OGELFORUM
    4. About OGELFORUM
    5. Browse archive
    6. Browse by date / topic
    7. Search
    8. Search
    9. Join
    10. Join
  • News & Events Events
    1. Home
    2. News & Events
    3. News
    4. News
    5. Events
    6. Events
  • OGEL Studies OGEL Studies
    1. Home
    2. OGEL Studies
    3. About OGEL Studies
    4. About OGEL Studies
  • Subscribe
Home > Legal & Regulatory docs.

Nord Stream 2 AG v The European Union - PCA Case No 2020-07 - Respondent's Memorial on Jurisdiction and Request for Bifurcation - 15 September 2020

  • Sign in to download document
Country
  • Switzerland
Year

2020

Summary

Ad Hoc Arbitration between Nord Stream 2 AG and the European Union
European Union Memorial on jurisdiction and bifurcation

1. Introduction

1. This Memorial on Jurisdiction and Request for Bifurcation (`Memorial') is filed by the European Union in accordance with the Procedural Calendar in Annex 1 of Procedural Order No. 1 of 24 April 2020.

2. In this Memorial, the European Union (`EU') raises two jurisdictional objections.

3. First, the European Union will explain (in Section 2.1, below) that the present Arbitral Tribunal has no jurisdiction because of lack of consent: The European Union's consent to international arbitration under the Energy Charter Treaty (`ECT') is conditional upon compliance with the fork-in-the-road clause in the ECT. Given that Nord Stream 2 AG ("NSP2AG" or the "Claimant") has already brought court proceedings before the Court of Justice of the European Union with regard to the adoption of Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019 (the "Amending Directive"), NSP2AG is prevented from bringing a parallel dispute before the present Arbitral Tribunal under the ECT.

4. Second, the European Union will explain (in Section 2.2, below) that the Arbitral Tribunal lacks jurisdiction ratione personae. NSP2AG's claims relate to Directive (EU) 2019/692, which amends Directive 2009/73/EC of 13 July 2009 concerning common rules for the internal market in natural gas (the "Gas Directive" or "Third Gas Directive"). The Amending Directive can impose no obligations on the Claimant. Therefore, the alleged breaches of the ECT, and the alleged ensuing damages, would not result from the Amending Directive. They could only result from measures which the Member States may or may not take within the scope of the margin of discretion accorded to them when they transpose and implement the Amending Directive. Those measures of the EU Member States would not be attributable to the European Union under international law. Nor would the European Union be otherwise responsible under international law for any alleged breaches of the ECT resulting from those measures, because those breaches would not be required by EU Law.

5. After setting forth the jurisdictional objections, the European Union makes a Request for Bifurcation (Section 3, below). The European Union respectfully requests that the Tribunal decide as a preliminary matter the jurisdictional objections set out by the European Union in this submission before considering the merits of the claims brought by NSP2AG, as provided for in Article 21(4) of the applicable UNCITRAL Rules. The European Union will demonstrate that the conditions for bifurcation are met.

...

1. Introduction
2. Jurisdictional Objections
2.1 the Claimant Has Already Elected a Different Jurisdiction for its Claim
2.1.1 Introduction
2.1.2 Interpretation of the Fork-In-The-Road Clause in Article 26(3)(B) ECT
2.1.3 the European Union's Interpretation of the Fork-In-The-Road Clause in the ECT is Consistent with past Arbitral Awards
2.1.4 the Application for Annulment Before the Court of Justice of the European Union and the Present Arbitration Proceedings Have the Same Fundamental Basis
2.1.5. Past Arbitral Awards that Applied the "Triple Identity Test" Can be Distinguished from the Present Case
2.1.6 The Present Dispute Before the ECT Tribunal and the Dispute Before the Court of Justice of the European Union Meet the Triple
2.1.7 Conclusion
2.2 The Arbitral Tribunal Lacks Jurisdiction Ratione Personae to the Extent that the Breaches of the ECT Alleged by the Claimant Result from Measures of the Member States for Which the European Union is not Responsible Under International Law
2.2.1 Introduction
2.2.2 The Measures Challenged by the Claimant
2.2.3 The EU Directives Challenged by the Claimant Impose No Legal Obligation on the Claimant
2.2.4 Member States Have a Wide Margin of Discretion to Implement the Relevant Provisions of the EU Directives Challenged by the Claimant
2.2.5. The Alleged Breaches Would Result from Measures Which Are not Attributable to the European Union
2.2.6 The European Union is not Otherwise Responsible for the Alleged Breaches of the Ect in Accordance With International Law
3. Request for Bifurcation
3.1 Introduction
3.2 the Applicable Rules
3.3 the Legal Standard
3.4 the Jurisdictional Objections Raised by the European Union Meet the Criteria for Bifurcation
3.4.1 the Jurisdictional Objections Are Substantial
3.4.2 Granting the Jurisdictional Objections Would End the Dispute or at Least Reduce the Proceedings at the Next Phase
3.4.3 Bifurcation is not Impractical
4. Relief Sought

To download this document you need to be a subscriber

Sign in

Forgot password?

Sign in

Subscribe

Fill in the registration form and answer a few simple questions to receive a quote.

Subscribe now

Documents missing? Documents to share? Let us know!

If you know of documents which are currently missing from our Legal & Regulatory database do let us know. You can send them directly to us for inclusion in the database, anonymously or otherwise.
Learn more here

Call for contributions

OGEL Call for Papers: COVID-19 and the Energy Transition

Dr. Theophilus Acheampong and Professor Tina Soliman Hunter

  • Dr. Theophilus Acheampong
  • Prof. Tina Hunter

OGEL Call for Papers: Law and Policy for Gas Flaring in a Low-carbon Economy

Dr. Tade Oyewunmi and Mohamed Rali Badissy

  • Dr. Tade Oyewunmi
  • Mohamed Rali Badissy

OGEL Call for Papers: The Circular Economy and the Energy Transition

Dr. Maria R. Mazzanti and Giacomo Luciani

OGEL Call for Papers

OGEL Call for Papers: Review of the Energy Sector in Ghana

Victoria Ayensu

  • Victoria Ayensu
  • More
  • Contribute

Advance publication

Estimating Fair Market Value of Nigerian Petroleum Assets: A Risk-Based Approach

2 Feb 2021

K.I. Ojukwu, O. Iledare, J.A. Ajienka, A. Dosunmu, A.C. Ibe

  • K.I. Ojukwu
  • O. Iledare
  • J.A. Ajienka
  • A. Dosunmu
  • A.C. Ibe

Good Oil, Clean Waters? Ghana's Oil Decade and Environmental Protection

16 Dec 2020

A.B. Opoku Acquah

  • A.B. Opoku Acquah

The Hydrogen Hope? Challenges and Opportunities for an Australian Hydrogen Industry

15 Dec 2020

M. Taylor, T. Soliman Hunter

  • M. Taylor
  • T. Soliman Hunter
  • More
  • Contribute

Stay connected

Sign up for our email alerts.

  • Issues
  • Advance publication
  • News
  • Linkedin
  • Twitter
  • RSS

Join the debate

Want to join OGELFORUM, our unique platform for oil, gas and energy issues?

Simply fill in the registration form to start your trial membership.

Download the app

  1. App store
  2. Google play

The Oil, Gas & Energy Law Intelligence (OGEL, ISSN 1875-418X) Journal and OGELFORUM listserv focus on recent developments in the area of oil, gas, energy law, regulation, treaties, judicial and arbitral cases, voluntary guidelines, tax and contracting, including the oil, gas, energy geopolitics. Read our Terms & Conditions here, and our Privacy Policy here.

About OGEL

  • Terms & Conditions
  • Contribute
  • Subscriptions
  • Contact
  • Help

Other publications

  • Transnational Dispute Management (TDM)

© 2004 - 2021. Published by MARIS.

  • Home
  • Contribute
  • Subscriptions
  • Contact
  • Help